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The agencies responsible for protecting federal whistleblowers and overseeing the
government’s labor relations program will begin 2018 with their top leaders in place.
The panel responsible for handling appeals involving wronged federal workers? Not
so much.

Henry Kerner, the new chief of the U.S. Office of Special Counsel, told Bloomberg
Law he will make the agency more aggressive in going after wrongdoers.

The OSC is charged with enforcing a law that prohibits federal workers from engaging
in 13 personnel practices. In addition to whistleblower retaliation, the banned practices
include inappropriate political activities, nepotism, and violating veterans’ preference
laws.

“OSC has been great at getting corrective actions,” Kerner said of the independent
investigative and prosecutorial agency. “But sometimes discipline hasn’t been as strong
as it could be.”

The agency is good, for example, at restoring federal whistleblowers to the jobs they
had before they were demoted in retaliation for making protected disclosures about
waste, fraud, and abuse, Kerner explained. It hasn’t been as successful in ensuring
discipline for those who retaliate, he said.

Punishment “will have a deterrent effect” for those who think they can stifle or intimidate
whistleblowers or commit other prohibited practices, Kerner said.

Efficiency is also a priority, he said. The appeals process at the OSC “is slow as
molasses,” Kerner said. “Even if a case is thrown out, it’s important to do that quickly.”

Kerner was a prosecutor in California for 18 years, working as deputy district attorney
for Los Angeles County.

Before joining the OSC, he was vice president at the Cause of Action Institute. Cause
of Action is a Washington-based nonprofit that describes its mission as “advocating
for economic freedom and individual opportunity advanced by honest, accountable, and
limited government.” Kerner also has worked at the House Oversight and Government
Reform Committee and the Senate Permanent Subcommittee on Investigations.

The new special counsel “has a solid history in the trenches helping whistleblowers,”
Tom Devine, legal director for the Washington-based Government Accountability Project,
told Bloomberg Law. “Most significant, he is not afraid to litigate, the missing link
for agencies to respect OSC investigations and accept OSC recommendations.”

New Team in Place at FLRA

The Federal Labor Relations Authority, which administers the government’s labor-management
relations program and adjudicates labor disputes between agencies and unions, also
has leaders in place.

Colleen Duffy Kiko, James T. Abbott, and Ernest DuBester were sworn in as FLRA members
Dec. 11. That brought the three-member panel back to full strength with Kiko as its
chair, FLRA spokeswoman Gina Grippando told Bloomberg Law.

DuBester, the FLRA’s Democratic member and a former union attorney, has been a panel
member since August 2009. Kiko and Abbott are first-timers, although both have extensive
experience at the agency. Kiko was the FLRA’s general counsel from October 2005 until
March 2008. Abbott was appointed as the FLRA’s chief counsel in 2007.

“We expect that cases will be resolved and issued more promptly than when prior cohorts
took office” because of the panel members’ backgrounds, Grippando said.

Those interested in how the FLRA will rule on federal labor issues going forward should
look at dissents over the past four years by former FLRA Member Patrick Pizzella,
consultant Bob Gilson told Bloomberg Law. Pizzella joined the panel, which can’t consist
of three members from the same political party, in October 2013 as its Republican
member.

Once the new, majority-Republican panel begins issuing decisions, DuBester likely
will be the one writing dissents, Gilson said. Gilson, a retired federal labor relations
director, now works as a contractor helping agencies resolve labor issues.

FLRA members serve for five years, but Kiko, Abbott, and DuBester are stepping into
existing terms. Kiko’s nearly full term will expire July 29, 2022, and Abbott’s will
expire July 1, 2020. DuBester will serve the remainder of a five-year term that expires
July 1, 2019.

Only One Member at Merit Board

The Merit Systems Protection Board, on the other hand, has just one member: Mark Robbins,
who was designated as the board’s vice chairman by President Donald Trump in January.

This means the panel, which adjudicates employee appeals alleging prohibited personnel
actions, can’t issue final decisions right now. The MSPB at full strength has three
members. With a two-member quorum, the panel can issue final decisions but only if
both members agree.

Attorney Cheri Cannon is advising some of her clients to appeal initial decisions
from MSPB administrative judges directly to the U.S. Court of Appeals for the Federal
Circuit rather than waiting for final action from the board, she told Bloomberg Law.

“You can get a much faster decision from the Federal Circuit” than the board at this
time, “if you have strong facts,” she said. Cannon is a managing partner at Tully
Rinckey who represents federal managers and employees before the MSPB, the OSC, and
the Equal Employment Opportunity Commission.

Trump can nominate three new MSPB members, including a Democrat because the three
board members can’t all be from the same political party. But he has yet to name any
new picks for the board.

Robbins joined the MSPB in May 2012 after being nominated by President Barack Obama
as its Republican member. Robbins’ term expires March 1, but he can remain on the
board until Feb. 28, 2019, in holdover status.

MSPB administrative judges are continuing to issue initial decisions in cases brought
by federal workers, James Eisenmann, the agency’s executive director, told Bloomberg
Law. Robbins is voting on petitions for review of those decisions. But final decisions
are on hold pending the confirmation of new members, Eisenmann said.

“We’re doing all we can with the cases” by having Robbins make determinations on the
petitions for review in advance of the seating of additional board members, Eisenmann
said.

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